Citation Nr: 0623373
Decision Date: 08/04/06 Archive Date: 08/15/06
DOCKET NO. 05-32 556A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been received to reopen
the claim for service connection for the cause of death.
WITNESSES AT HEARING ON APPEAL
Appellant and Dr. G.C.
ATTORNEY FOR THE BOARD
C.A. Skow, Counsel
INTRODUCTION
The veteran had recognized service during World War II. He
was a prisoner-of-war (POW) of the Japanese government from
April 1942 to January 1943.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a February 2005 rating decision of the
Manila, the Republic of the Philippines, Department of
Veterans Affairs (VA) Regional Office (RO), which denied the
appellant's claim to reopen.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the appellant's claim to reopen has been obtained by VA.
2. The appellant's claim for service connection for the
cause of the veteran's death was previously denied by the
Board in a September 1992 decision.
3. Relevant evidence submitted since the Board's September
1992 decision is not material because it does not relate to
an unestablished fact necessary to substantiate the claim.
CONCLUSIONS OF LAW
1. The September 1992 Board decision is final. 38 U.S.C.A.
§ 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103
(2005).
2. New and material evidence has not been submitted to
reopen the appellant's claim for service connection for the
cause of the veteran's death. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. §§ 3.156(a), 3.312 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Preliminary Matters: VCAA
Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA) must be
examined. The VCAA provides that VA shall apprise a claimant
of the evidence necessary to substantiate his/her claim for
benefits and that VA shall make reasonable efforts to assist
a claimant in obtaining evidence.
In a letter dated October 2004, VA notified the veteran of
the information and evidence needed to substantiate and
complete her claim, including what part of that evidence she
was to provide and what part VA would attempt to obtain for
her. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. §
3.159(b)(1) (2005); Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002). The letters also generally advised the appellant
to submit any additional information in support of her claim.
See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thus,
the Board finds that VA met its duty to notify the appellant
of her rights and responsibilities under the VCAA.
With respect to the timing of the notice, the United States
Court of Appeals for Veterans Claims (Court) held in
Pelegrini that a VCAA notice, as required by 38 U.S.C. §
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, the appellant was
initially given VCAA notice in October 2004, prior to the
rating decision here on appeal, in keeping with Pelegrini.
Under these circumstances, the Board finds that the
notification requirements of the VCAA have been satisfied as
to both timing and content.
Further, in advising the appellant to provide medical
evidence that will show a reasonable probability that the
condition that contributed to death was caused by injury or
disease in service, the RO notified the appellant of the
evidence that was missing at the time of the prior Board
decision. See Kent v. Nicholson, 20 Vet. App. 1 (2006).
The Board also finds that VA has complied with the VCAA's
duty to assist by aiding the appellant in obtaining evidence,
requesting a medical opinion as to whether service-connected
schizophrenia contributed to the veteran's cause of death,
and affording the appellant the opportunity to give testimony
at her December 2004 hearing. It appears that all known and
available records relevant to the issues here on appeal have
been obtained and are associated with the claims file, and
the appellant has does not appear to contend otherwise as she
indicated in a July 2006 statement that she had no more
evidence to submit. The appellant gave credible testimony
before the RO in December 2004, and submitted additional
medical evidence. Thus, the Board finds that VA has done
everything reasonably possible to notify and to assist the
appellant and that no further action is necessary to meet the
requirements of the VCAA.
II. Claim to Reopen: New and Material Evidence
The veteran, who served in World War II and was a POW under
the Japanese government, had a 30 percent disability rating
for schizophrenic reaction, in partial remission, as the time
of his death in February 1990.
In April 1990, the appellant, the veteran's surviving spouse,
filed a claim for service connection for the cause of the
veteran's death. The essence of her claim was that service-
connected schizophrenia caused or contributed to his death.
We note that service connection for the cause of a veteran's
death requires a showing that either the fatal disorder or
disease was incurred in, or aggravated by, service or, in
some instances, was manifest to a compensable degree within
one year of service discharge. 38 U.S.C.A. §§ 1101, 1110,
1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005).
Alternatively, service connection also may be granted with
evidence that a service-connected disability caused or
contributed substantially or materially to cause death. 38
U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.310(a), 3.312
(2005).
In September 1992, the Board denied service connection for
the cause of the veteran's death. The Board found that the
veteran died from the effects of heart disease, a respiratory
disorder, acute gastritis, diabetes mellitus and typhoid
fever, which were not incurred in or manifested until many
years after separation from service. The Board further found
that the veteran's death was not causally or etiologically
related to his service-connected schizophrenia.
The appellant was given notice of the denial of benefits and
of her appellate rights. She appealed this decision to the
United States Court of Veterans Appeals (currently the United
States Court of Appeals for Veterans Claims) (the Court).
The Court affirmed the Board decision and it became final.
See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103
(2005).
In September 2004, the appellant requested reopening of the
claim for service connection for the cause of the veteran's
death.
A claim may be reopened if new and material evidence is
presented or secured with respect to the claim which had been
disallowed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §
3.156 (2005). For claims filed after August 2001, such as
the claim here on appeal, "new and material evidence" is
defined as evidence not previously submitted to agency
decision-makers which, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. With these
considerations in mind, the Board must determine if the
appellant's claim for service connection for the veteran's
cause of death may be reopened. In reviewing the evidence
for purposes of whether it is new and material, the
credibility of new evidence is to be presumed. See Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
At the time of the Board's September 1992 decision, the
evidence of record included the veteran's service medical
records and VA examinations within a few years after service.
Neither organic heart disease nor a chronic respiratory
disorder was shown in service. Report of VA examination
dated September 1957 reflects essential hypertension. Blood
pressure was essentially within normal limits when he was
examined in October 1962.
Terminal hospital records dated January to February 1990
reflect that he was admitted for weakness; he had oral thrush
and was unable to eat. Hospital records show that he was a
known hypertensive and asthmatic. Diagnostic testing
revealed heart problems, to include right bundle branch
block, occasional premature ventricular contractions, and
sinus tachycardia with frequent atrioventricular
contractions. He also had pneumonia and diabetes. There
were gastrointestinal complaints, but no ulcer was found.
Body weakness and respiratory problems continued, and the
veteran developed typhoid fever during hospitalization. On
February 1, 1990, the veteran had cardiac arrest and died.
A death certificate shows the veteran's immediate cause of
death as cardiac arrest secondary to lobar pneumonia, with
acute gastritis, dementia, diabetes mellitus as antecedent
causes; chronic obstructive pulmonary disease secondary to
bronchial asthma is shown as an underlying cause and lobar
pneumonia, typhoid fever and complete right bundle branch
block are shown as other significant conditions contributory
to death.
The report for the terminal period of hospitalization and a
statement from the veteran's treating physician, D. Gayanelo,
M.D., shows that he died from the effects of heart disease, a
respiratory disorder, acute gastritis, diabetes mellitus and
typhoid fever.
An October 1991 letter from Dr. Gayanelo reflects a brief
account of the veteran's hospitalization and his opinion that
the veteran's dementia interfered with his treatment,
complicating management of the case. Because he had to rely
on laboratory results and physical findings and could not
gage accurately enough how the veteran was feeling
subjectively, as the veteran could not communicate lucidly,
Dr. Gayanelo stated that he believed service-connected
dementia contributed substantially and materially to the
veteran's death.
The Board also reviewed clinical records associated with the
veteran's terminal hospitalization, and doctor's order sheets
as well as nurses' records. Nothing in these records shows
that service-connected schizophrenia played any part in the
veteran's death.
Evidence obtained since the Board's September 1992 decision
includes a duplicate copy of the death certificate, sworn
testimony, an undated letter from Dr. Gayanelo, a VA medical
opinion dated May 2006, and various certifications from The
Doctors Hospital, and a letter titled Certification and dated
September 2005.
Sworn testimony from the appellant along with various
statements of record reflects her contention that the
appellant's service-connected dementia was actually a form of
schizophrenia which contributed to his death. She also
contends that he had asthma and gastroenteritis in service
which contributed to his death and that the bundle branch
block noted in his terminal hospital records was actually
hypertension, a POW-related disease.
The undated letter from Dr. Gayanelo reflects an explanation
as to why he did not treat the veteran for dementia during
his terminal hospital confinement. He reiterated that, while
"dementia was not a direct cause of his death, it was an
important factor which had to be considered in complicating
the course of his medical treatment."
Certifications from The Doctors Hospital dated October 2003
reflects the dates of the veteran's confinement in 1990 under
the care of Dr. Gayanelo for the following diagnoses:
Cardiac arrest secondary to lobar pneumonia, acute gastritis,
dementia, diabetes mellitus, chronic obstructive pulmonary
disease (COPD) secondary to bronchial asthma, typhoid fever,
and complete right branch block. A January and February 2005
certification shows that "his antecedent cause of death was
dementia." A September 2005 certification shows that the
veteran's hospital records were destroyed in a 1995 typhoon.
A letter dated September 2005 from F. Gallo reflects that she
was the veteran's private nurse from January 9 to 18, 1990,
and that she attended him for breathing difficulty due to
asthma.
A VA medical opinion dated May 2006 reflects that the main
cause of the veteran's death was lobar pneumonia, "which in
turn led to a cardiac arrest." He further clarified for the
record that "while it is widely known that schizophrenia, is
in fact a form of dementia, . . . one can only 'speculate'
that the dementia that contributed to the veteran's death was
mainly due to his Schizophrenia since Diabetes Mellitus as
well as COPD are also acceptable possible etiologies for
dementia." The VA physician noted that he had reviewed the
claims folder.
The Board carefully considered all evidence of record in an
effort to determine whether new and material evidence
sufficient to reopen the claim of entitlement to service
connection for the cause of the veteran's death has been
submitted.
The duplicate copy of the death certificate is not new;
however, the appellant's sworn testimony, the undated letter
from Dr. Gayanelo, the VA medical opinion dated May 2006, the
various certifications from The Doctors Hospital, and a
letter titled Certification and dated September 2005 are new
as they were not previously considered by the Board.
Notwithstanding the presentation of new evidence, the recent
evidentiary submissions are not material. This is because,
whether considered individually or as a whole, the evidence
does not establish a nexus between any of the listed
conditions causing his death and service, nor does it suggest
that service-connected schizophrenia caused or contributed to
his death. In fact, the recent evidentiary submission from
Dr. Gayanelo is redundant of his earlier statement previously
considered and the VA medical opinion deemed a connection
between the dementia contributing to death and service-
connected schizophrenia as no more than speculative. In view
of the foregoing, the Board finds that the evidence is not
new and material and the claim for service connection for the
cause of the veteran's death may not be reopened at this
time. Consequently, the appellant's claim remains denied.
We note that the appellant avers that the veteran had asthma
and gastroenteritis in service as well as hypertension due to
confinement as POW; however, the appellant is not competent
to provide a medical opinion relating these conditions to
service. Bostain v. West, 11 Vet.App. 12, 127 (1998), citing
Espiritu v. Derwinski, 2 Vet.App. 492 (1992); see also,
Routen v. Brown, 10 Vet.App. 183, 196 (19997)("a layperson
is generally not capable of opining on matters requiring
medical knowledge."). Moroever, she has not presented any
new or material evidence suggesting that these conditions
caused or contributed to the veteran's death and/or is
related to service.
ORDER
New and material evidence to reopen the claim of service
connection for the cause of the veteran's death has not been
received, and the application to reopen is denied.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs